Settlement Chikwinya and Lloyd Mukapiko v The State

The first applicant is a member of the House of Assembly for Mbizo Constituency in Kwekwe, and the second applicant is a member for Redcliff Constituency. Both applicants were arrested on 18 January 2019 on allegations of subverting a constitutional government as defined in section 22(b) read with section 22(1) of the Criminal Law (Codification and Reform) Act, alternatively with inciting public violence in contravention of section 187(1) read with section 36(1) of the Criminal Code. The allegations were that on 12 January 2019 at around 2100 hours, the two accused persons addressed a public meeting at Red Lion bar in Kwekwe inciting the general public to embark on violence in a nation-wide campaign dubbed 'National Shut Down'. As a result of these remarks, various civic groups and their affiliates went on a rampage committing acts of violence in Gweru, Gokwe, Harare and Bulawayo. Scores of people were injured, shops were looted and torched. The first applicant allegedly posted a 'thank you' message on his Facebook page to all who had heeded the call for a mass stay-away and total shut down, encouraging people to continue putting pressure on government. Both applicants deny the charges.

• Whether there are compelling reasons justifying the applicants' continued detention pending trial
• Whether the applicants are likely to abscond if granted bail
• Whether the applicants are likely to interfere with state witnesses or investigations
• Whether the interests of justice require the applicants to be detained in custody pending trial
• Whether the seriousness of the offence alone is sufficient grounds to deny bail

The applicants were admitted to bail in terms of the amended draft order.

The binding legal principles established are: (1) In bail applications pending trial, the presumption of innocence operates in favour of the applicant as enshrined in section 50(1)(d) of the Constitution of Zimbabwe (Amendment 20) of 2013; (2) A person shall be released on bail unless the court finds that it is in the interests of justice that he or she should be detained in custody, as provided in section 117(1)(2) of the Criminal Procedure and Evidence Act; (3) The seriousness of an offence on its own is not a good ground for denying bail; (4) Where interference with witnesses is raised as a ground for opposing bail, there must be a well-grounded apprehension of such fear - mere suspicion that applicants may interfere with witnesses will not suffice; (5) Bold unsubstantiated allegations cannot be used to oppose the granting of bail; (6) The primary considerations in bail applications are whether the applicant will stand trial, whether the applicant will interfere with investigations or tamper with evidence or witnesses, whether the accused will commit offences whilst on bail, and other considerations the court may consider good and sufficient.

The court observed that at the time of the hearing of the bail application there were no mass demonstrations going on and that peace had prevailed since the arrest of the applicants as a result of various interventions by the security services. The court also noted that investigations should, by all accounts, be complete nearly two weeks after the applicants' arrest. These observations, while relevant to the decision, constitute obiter dicta as they are factual observations rather than binding legal principles. The court's comment that the applicants 'who have been in custody for nearly two weeks have the capacity to interfere with investigations, which by all accounts must be complete at this stage' reflects a practical observation about the timeframe for criminal investigations in cases of this nature.

This case is significant in Zimbabwean criminal procedure law as it reaffirms the constitutional presumption of innocence in bail applications and reinforces the principle that the seriousness of an alleged offence alone cannot justify denial of bail. The case demonstrates the courts' commitment to protecting individual liberty even in politically sensitive cases involving allegations of subverting constitutional government and inciting public violence. It sets an important precedent that in bail applications, opposition based on mere suspicion or unsubstantiated allegations of potential witness interference will not suffice - there must be well-grounded apprehension supported by facts. The case also illustrates the application of constitutional safeguards in section 50(1)(d) of the Constitution of Zimbabwe (Amendment 20) of 2013 and the proper interpretation of section 117 of the Criminal Procedure and Evidence Act.